Family Law

Radical surgery

Within a few weeks of the judgment Family Procedure Rules Committee (FPRC) and Ministry of Justice officials with the president had amended PD 12D. By reference to principles laid down in two cases – Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1977] 1 All ER 114, and A v Liverpool City Council and anor [1982] AC 363, (1981) 2 FLR 222 – both of which contain important judgments by Scarman (LJ and Lord respectively), and thanks to the silence on the subject of Lowe and White on Wards of Court (1986), Sir James had held that the police did not need court permission to interview a ward.

He drew attention to FPR 2010 PD12D, which includes: 

‘5.2 Where the police need to interview a child who is already a ward of court, an application must be made for permission for the police to do so…’ 

He said that the PD was ‘simply wrong’; and that it probably needed ‘radical surgery’.

Practice directions in family proceedings

Sir James handed the question of review to FPRC: 

‘There is… a pressing need for paragraph 5… to be considered as a matter of urgency’ ([49]). 

However, as the amendment practice direction shows, PDs remain the responsibility of the President of the Family Division (Constitutional Reform Act 2005 (CRA 2005) s 13 and Sch 2 (power to give directions) as explained in Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602 and Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171, [2009] 1 WLR 2274 (Bovale)).

CRA 2005, Sch 2, para 9 amends the Courts Act 2003, s 81. In summary what this and Bovale say is that since 2005 PDs are made by the heads of each High Court Division, with the approval of the Lord Chancellor. This explanation, so far as the Family Division is concerned, must be read alongside Bovale, where the Court of Appeal explained (at [18]) that they assumed that the practice outlined in CRA 2005, s 81 also applied in the Family Division.

PDs are an important part of court proceedings. Of that there is no question. They cannot create law, as explained by Brooke LJ in U v Liverpool CC (Practice Note) [2005] EWCA Civ 475: 

'[48] ...A practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.’

Their importance was recognised by Civil Procedure Act 1997 which led to Civil Procedure Rules 1998 and as explained by Practice Directions and the Civil Procedure Rules (CLJ 53, 2000) Prof Jolowicz, discussed by Hale LJ in Re C (above). In Re C, Hale LJ explained the PD as: 

'[21] Unlike the Lord Chancellor’s orders under his ‘Henry VIII’ powers… the Practice Directions are not made by statutory instrument. They are not laid before Parliament or subject to either the negative or positive resolution procedures in Parliament. They go through no democratic process at all, although if approved by the Lord Chancellor he will bear ministerial responsibility for them to Parliament. But there is a difference in principle between delegated legislation which may be scrutinised by Parliament and ministerial executive action. There is no ministerial responsibility for Practice Directions made for the Supreme Court by the Heads of Division….’

The result is that PD12D has been radically altered. The previous lengthy para 5 goes. In accordance with Sir James’s judgment it is replaced by:

Criminal proceedings

5.1 Case law establishes that:

1. There is no requirement for the police or any other agency carrying out statutory powers of investigation or enforcement to seek the permission of the court to interview a child who is a ward of court. The fact that a child is a ward of court does not affect the powers and duties of the police or other statutory agencies in relation to their investigations. Provided that the relevant statutory requirements are complied with, the police or other agencies are under no duty to take any special steps in carrying out their functions in relation to a child who is a ward of court.
2. Where a child has been interviewed by the police in connection with contemplated criminal proceedings and the child is, or subsequently becomes, a ward of court, the permission of the court is not required for the child to be called as a witness in the criminal proceedings.

Para 5.2 concludes the amendments by asserting that where the police or other statutory agency takes action in relation to a ward, the court, and any guardian appointed in the case must be told.